Observer States

Autumn Session of the Congress of Local and Regional Authorities of the Council of Europe (1-3 December 2008)

Strasbourg, 02.12.2008

Declaration on behalf of Marino Keulen, Minister for Home Affairs, Urban Policy, Housing and Civic Integration in the Flemish Government, pronounced by Fons Borginon

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As you probably know, Minister Keulen has informed your President, Mr Micallef, by letter of the fact that he could not personally attend this meeting for legal reasons. I will elaborate on these reasons later on. In that same letter Minister Keulen proposed to let himself be presented by a legal adviser.

Mr Micallef has then expressed understanding of the Minister’s position and proposed that the Minister be replaced by an elected political representative.

I would first of all like to elaborate on the legal reasons which prevent Minister Keulen from personally accepting your invitation at this moment. As your President clearly explained in his reply to Minister Keulen, your meeting is a political assembly. Also, the issues that are dear to you and that are on the agenda of your assembly are real political issues, which are closely connected to the European Charter of Local Self-Government. Minister Keulen insists on emphasising that he himself is very much interested in the issue of local self-government, since he has been active as a locally elected official for over twenty years now. As Flemish Minister for Home Affairs he has had the opportunity these past years to update and simplify regulations relating to local authorities, the main aim always being to reduce the supervision of the central government and to give increased autonomy to the municipalities. Under his impulse the Flemish authorities have started to regard the municipalities more and more as partners in policy and less as subordinated authorities. The Minister is aware that the local authorities form the corner stone of democracy. They are the politicians who are closest to the citizens and whom citizens trust the most. Together with his party the Minister has in fact always argued in favour of introducing a system for the direct election of mayors by the citizens. In this, the Charter of Local Self-Government has always been a support to the advocates of such direct elections. However, up till now no majority has been found for this in the Flemish Parliament. The Minister is thus obliged to comply with the legislation in force which requires that the candidate-mayor who is nominated by the municipal council must be appointed by the Flemish government. Flanders currently has a combined system. On the one hand the mayor is the ‘emanation’ from the majority in the elected municipal council, but on the other hand he is also someone in authority who performs the duties entrusted to him by the regional Flemish government or by the Belgian federal government. This fact is essential to evaluate the issues to be debated here today. This double role also explains the reservations Belgium has made about the provisions of the Charter which pertain to the direct election of mayors. I will discuss this double role and the Belgian reservations in greater detail later on.

Now, why is it that Minister Keulen cannot be present after all? The reason for this lies in the fact that, apart from the interesting political discussion on direct democracy at local level and about the peculiarities of the Belgian federal system and the resulting language legislation, your assembly is also asked to give its opinion about the non-appointment of three candidate-mayors. These are three concrete legal cases in which the Minister has decided not to appoint the three candidate-mayors present here. As competent Minister, Minister Keulen has a legal role to play for which he is to strictly abide by the legislation in force. As should be the case in a democratic rule of law, the rejected candidate-mayors can lodge an appeal against the Minister’s decision with an independent court. In this case this is the Council of State, the highest administrative court in Belgium. As the Minister has repeatedly pointed out to your research delegation and your President, the rejected candidate-mayors can appeal against his decision and dispute the lawfulness and proportionality thereof. The Minister has also pointed out that, oddly enough, they did NOT avail themselves of this possibility last year, after he had decided for the first time not to appoint them. This has led to the strange situation in which this case has been put on the agenda of your esteemed assembly without the competent court having been able to rule on the lawfulness of the decisions taken. As you undoubtedly know, last week the Minister took the decision not to appoint these candidate-mayors a second time. As a result, the rejected candidate-mayors once again have the opportunity to appeal against this decision. This may surprise you, but the Minister strongly urges the parties involved to lodge an appeal with the Council of State. The reason for this is that the press and even your assembly are now debating on the lawfulness of this decision, while the case has NOT even been submitted to the competent court. Because the Minister hopes that this appeal will yet be lodged, he cannot be present here today. He can indeed not engage into any political debate about a legal matter in which he himself and the candidate-mayors present here are involved. In this appointment dossier he must comply with the Belgian and Flemish regulations. Therefore he considers it impossible to enter into a debate about the expediency of the regulations he is expected to implement, until this matter has been legally settled.

For these same reasons the Minister has asked your President to postpone the debate. Indeed, once the concrete case of non-appointments would have been solved in keeping with the applicable Belgian law, all parties involved would be able to debate with increased openness and scope about the objectives of the Charter and the way in which these are pursued in Flanders and Belgium. I wish to repeat this request of the Minister here and pose his question to you: Why can this debate not be postponed until the appointment cases have been legally settled? This would allow for an open debate to be held, without interfering in any way with how the case is handled by the Council of State. In additional order, if postponement turns out to be impossible, I would in any case like to ask you to postpone the final vote about the present resolution until the matter has been legally dealt with in keeping with Belgian law. In this way your assembly will not be asked to give its opinion about the lawfulness of a ministerial decision that was taken in accordance with Belgian law, as is now the case. On the contrary, your assembly would limit itself to the task for which it has been established, viz. that of a political body which monitors compliance with the Charter of Local Self-Government. Moreover, it will allow your assembly to defend itself against the impression some people currently have, namely that you are choosing sides in a legal dispute. I would expressly like to ask you to consider our request for postponement of the debate, and in subsidiary order, of the final vote.

The content of the resolutions submitted to your assembly pertains to the acts and laws governing the autonomy and supervision of local authorities, but also to the Belgian language legislation as a whole and even to the whole Belgian federalist system, which, apart from dividing the country into three Regions with large autonomous powers, also allocates an important role to the three language Communities. During its visit to our country your delegation has had the opportunity to exchange views on this with people in political authority and experts. Detailed reports about these various issues were made available to the delegation and to your assembly in the working languages used by you. It is impossible to repeat all of this here in the time available to us. However, I assume you will have had the time to read this documentation. I wish to limit myself to two issues which I will further explain:

1. the specific role of mayors in Flanders; our mayors are at the same time the primus inter pares of the elected municipal council members as well as the representative of central government in the municipality. As a result they fulfil a special bridging function between local democracy and central government. For this reason they must be appointed by the central government after having been nominated by the elected municipal council.

2. a few peculiarities of Belgian federalism and the role of language legislation in this. My aim is to demonstrate that all of the related regulations form one logical whole. Just like one single card cannot be removed from a house of cards, the fairness of the language legislation cannot be judged on the basis of one isolated detail.

The bridging function of mayors

Municipalities in Belgium enjoy large autonomy. This autonomy has been embedded in the Belgian constitution. Municipal autonomy pertains to any matters of municipal interest and can only be restricted by law. The direct election of municipal council members by the citizens in that particular municipality is a constitutional achievement as well. Mayors are nominated for appointment by the municipal council. The necessity of appointment by the central government can be explained by this special position which mayors hold in the Belgian government organisation. The mayor is not just the ‘head’ of the municipality, but also acts as the representative of central government in the municipality. In our country mayors have powers relating to the police, among other things. However, in general they are in charge of executing laws, acts and implementing orders of the federal government as well as of the Regions and Communities. That is why mayors are appointed by the Flemish Government and not just elected by municipal council members. This has always been the case in Belgium and this situation has not changed following the transfer to the Regions of responsibilities regarding local authority organisation.

The intervention of the central government – formerly the federal government, now the Regions – in the appointment of the mayors has from way back fitted in with the institutional principle that the central government has a representative in every territorial subdivision of the territory. It is also a guarantee for the cohesion of the state organisation in a system in which decentralised authorities have large autonomy.

I would like to ask you to keep this specific role of the mayors in Flanders in mind and to compare it to the role of mayors in your own country. Indeed, this role cannot be compared to the powers of mayors in other countries. We are running the risk of comparing apples and oranges. Given the fact that Belgian mayors also act as agents of the central government and that for this they receive large responsibilities, the appointment by this central government is indispensable. You and I both know that in other states these powers are often entrusted to other people in public authority than the mayors. I refer, for instance, to powers regarding the police.

In a democratic state each citizen is bound by the law. Naturally, this goes even more for people in public authority, such as mayors and ministers. It is therefore self-evident that a candidate-mayor who wilfully decides not to abide by the law and announces that he will not do so in the future either, cannot be appointed by the central government. Indeed, the central government would in this case appoint him as a guardian of the law, whereas the candidate himself claims not to feel bound by this law. It does not matter whether or not it concerns a specific provision of the law. It does not matter either whether it concerns a rule of law which is considered a detail by some people. In the end it does not even matter whether it concerns a rule of law which is regarded as unfair by some people. A candidate-mayor who refuses to apply part of the legislation – even after the validity of this rule was confirmed by the highest administrative court – makes his appointment impossible.

Naturally, citizens and people in political authority have the right to argue in favour of a different legislation in a democratic society. Mayors can of course defend the use of a different language regime for their municipality. Also, mayors can prefer to annex their municipality to another Region. To this end they can use any political means available to them. However, what they cannot do is to refuse to abide by the existing legislation. The Flemish Government cannot be expected to appoint candidates who manifestly and expressly refuse (and who claim that they will continue to refuse) to apply the law. One of the defining elements of the rule of law is to guarantee that acts and laws are applied. The government has a duty to make sure that regulations which have come about democratically are implemented.

I would like you to take due account of this. If you were to vote a resolution later on which asks the Flemish Government to yet appoint the three candidate-mayors involved, you would actually be asking it to appoint people who refuse to apply certain laws to be appointed as guardians of the law. You would actually be ignoring a major principle of the democratic rule of law. The possible recommendation to appoint the mayors is therefore of a different order than any recommendations to modify certain legislation. Indeed, a recommendation to appoint the mayors is directed towards the executive power and implies a request to the executive power to ignore the legislation in force. Recommendations with regard to the Belgian language legislation, facilities or the direct election of mayors, on the other hand, are requests directed to the members of the Belgian and Flemish parliaments to consider the legislation in force. Apart from the content-related discussion, there is nothing improper about such a request.

The proposed resolution criticises the way of appointing the mayor, in particular the appointment by the Flemish Government. Your Assembly advocates a system of direct election of the mayor. As I already mentioned, Minister Keulen also advocates the direct election. However, in his capacity he must obviously fit his decision in with the regulation adopted by the Flemish Parliament.Moreover, Recommendation 131 (2003) on local democracy in Belgium states that, although the direct election of the mayors would be a better solution than the current practice of appointment by the Regional Authority, the current practice is still in accordance with the Charter because, in reality, the municipal council has a considerable say in the appointment of the mayor.

Furthermore, I would like to draw your attention to the reservations Belgium made with regard to the ratification of the Charter of Local Self-Government. These reservations concern, among others, the provisions regarding the direct election of the mayor. I understand your Assembly promotes the further ratification of the Charter. On the other hand, a Member State cannot be reproached with not meeting its commitments if it actually uses the possibility of reservations that is provided, at the moment of ratification.

Finally, the delegation's report states that the reasonable term for taking an appointment decision (n° 12) is exceeded. However, the candidate-mayors have refrained for months from answering requests for information from the governor, within the framework of his investigation. They thus made it impossible for the Minister to make an appointment decision, while without a report from the governor, there was not yet a reason either to proceed to a non-appointment. This negligence of the candidate-mayors is not mentioned in the report. The municipal councils concerned have then, without any new elements in the dossier, nominated the already rejected mayors for the second time. As a consequence, they are obviously responsible themselves for the non-appointment of a mayor for the past two years. I would also like to draw your attention to the fact that administrative law obliges the Minister to act within reasonable terms; if the rejected mayors think these terms have been exceeded, they have the possibility of lodging an appeal before the Council of State.

The Belgian Federalism

The final point of attention I would briefly like to comment on is the a-typical Belgian federalism and the complex language legislation that comes with it. The language legislation as it is regulated in Belgium is the result of a precarious balance between the language communities in our country.

It is of public order and is established with special majorities in the federal Parliament, among which a majority of each language group. This is important : the language legislation which the candidate-mayors object to and which they consider as an infringement of the rights of the French speakers, came about in the federal Parliament, with the consent of a majority of the French-speaking Members of Parliament.

In the early sixties of the last century, one of the first steps in the process that made Belgium into a federal state was the establishment of the language areas in the country. The facilities granted to a number of municipalities were exceptions to the unilingual character of the Region these municipalities are located in. It is established case law at the Belgian Constitutional Court and the Council of State that these exceptions must be interpreted in a limitative way. In any case, the municipalities with linguistic facilities clearly do not have the same status as the bilingual area of Brussels Capital. The mayors advocate a transfer of their municipalities to this bilingual area, which is their right. However, by suggesting the facilities are an infringement of the rights of the French-speaking citizens, they are really turning things upside down. These facilities provide par excellence a particular protection to French-speaking citizens who live in the Flemish Region.

The transformation of the once unitary Belgian State into a federal State with broad autonomy for the Communities and the Regions is a continuous process, which has not been concluded up to today. You may have noticed that this political discussion is a topicality in our country more than ever before.

It is essential that the language legislation has been established at federal level as a result of a balance in the relationships between the different communities in this country.

Affecting these balances is precarious for the country's balance. The community balance is like a house of cards. It is a balanced construction in which the protection of the minority at one level is linked to the regulations at other levels. If you draw out a card just like that, the entire house of cards will collapse… I would like to ask you to be aware of this. Today you are indeed invited to decide on only one piece of the puzzle, i.e. the application of the language legislation in a number of Flemish municipalities with linguistic facilities for French-speaking citizens. You are not invited to deal with the particular position the French-speaking minority obtained in the federal institutions. You are not invited to decide on the facilities for Dutch-speaking persons in the Walloon Region. Neither are you invited to decide on the legal bilingualism in the Brussels Capital Region and the often unilingual situation in the field. Nevertheless, all of these matters are closely interrelated, and working on one problem immediately implies working on the other problems as well. I would therefore like to ask you to exercise the necessary caution and wisdom when judging one piece of the complicated Belgian puzzle.

Allow me to conclude.

1) The Flemish Government recognises the importance and necessity of a permanent debate on the reinforcement of local self-government of the municipalities, and therefore also your right as 'Congress of Local and Regional Authorities' to critically monitor this.

However, this purposeful political debate is currently entirely put in the shade by three individual dossiers that are the subject of a legal procedure. To establish what is applicable Flemish and therefore also Belgian law in this matter is the responsibility of competent judges who are trained to that end. Once all doubt has been removed, we are prepared to enter into debate with you on the substance of the case. However, by voting the recommendation that Minister Keulen has to appoint the three mayors, you would currently oblige him to act illegally himself.

2) In terms of content, you already stated in recommendation 131 that the system according to which a mayor is appointed by the executive power is in accordance with the Charter text to the extent that it appears, from practice, that the "municipal council" exercises an "important influence" on the appointment process. In more than 95 % of the cases in Flanders the mayor who is appointed is the one who was presented by the majority of the directly elected officials. Our practice is therefore entirely in accordance with the spirit of the Charter. Moreover, if you take into account the fact that Belgium did not accept Article 3, paragraph 2 of the Charter, and is therefore, according to international law, not bound by the provisions regarding the direct election, it would be really taking it too far if you would 'convict' us for something we are not even obliged to but nevertheless already apply to a large extent.

3) Belgium is a complex country. Two communities of about the same size have tried for decades to successfully co-exist by means of dialogue and compromise. In 1970 as well as in 1980, 1988-1993 and in 2001, this dialogue resulted in agreements that were adopted by a 2/3rd majority and a majority in both language communities. The language legislation and its implementation in the Flemish peripheral municipalities around Brussels has always been a part of those discussions and search for compromise.

What is actually happening is that some politicians use you to score points within this immensely difficult community debate. Please do not let them bring you in a position which you would yourself consider as an inequitable interference if it concerned your country and an issue that was at the top of its political agenda.

That is why I strongly urge you again to postpone this vote until the legal question has been answered.

If the vote takes place after all, I would like to ask you to act counter to the tradition in this house, and to not adopt the proposed decisions just like that. Please take your responsibility and dare to act counter to an unjust and unfair representation of the situation. A dissenting vote does not mean you agree with us for 100 %, but it means that you think more study and depth is required to understand the complex issue of the Belgian federation.